In re the Arbitration between Schachter & Lester Witte & Co.

Majority

p. 1067

In the Matter of the Arbitration between Alan A. Schachter et al., Appellants, and Lester Witte & Company, Respondent.

Argued March 29, 1977;

decided May 3, 1977

Stephen P. H. Rachlis, Harold Manheim, Robert Braunschweig and Franz S. Leichter for appellants.

Arnold Buffum Lovell, Arnold Chase, Edward Matthew Kabak and Richard H. Altabef for respondent.

Memorandum. Order affirmed.

The conclusory allegations contained in the petition and moving papers are insufficient to demonstrate that there is a "substantial question of the existence of a 'valid agreement’ to arbitrate” (Durst v Abrash, 22 AD2d 39 , 41, affd on opn below 17 NY2d 445 ). Specifically, petitioners do not spell out evidentiary facts sufficient to raise a triable issue in support of their claim that they were induced to enter into the partnership agreement or to agree to the arbitration clause contained within it as a result of fraud or duress (8 Weinstein-KornMiller, NY Civ Prac, par 7503.23, p 75-83; see Moseley v Electronic Facilities, 374 US 167 ; Matter of Housekeeper v

p. 1068

Lourie, 39 AD2d 280 , app dsmd 32 NY2d 832 ). Nor does the agreement, on its face, constitute an unlawful restraint of trade (Matter of Riccardi [Modern Silver Linen Supply Co.], 36 NY2d 945 , 947). Hence, the application to stay arbitration was properly denied.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.

Cases cited

Durst v. Abrash 22 AD2d 39 N.Y. App. Div. 1964-10-27 at 41 p. 1067
Durst v. Abrash 17 NY2d 445 N.Y. 1965-12-30 p. 1067
Moseley v. Electronic & Missile Facilities, Inc. 374 US 167 SCOTUS 1963-06-17 p. 1067
Housekeeper v. Lourie 39 AD2d 280 N.Y. App. Div. 1972-06-27 p. 1068
In re the Arbitration between Riccardi & Modern Silver Linen Supply Co. 36 NY2d 945 N.Y. 1975-06-16 at 947 p. 1068